Here's The Vine Video Prince Abused The DMCA To Take Down
from the hello-fair-use dept
We just posted about Prince’s NPG Records issuing DMCA takedowns on a set of Vine videos. While noting that Prince regularly seeks to shut down internet support of his work far beyond what the law allows, we also pointed out that, given the 6 second limit on Vine videos, it seemed almost certain that the videos in question would be protected as fair use and/or de minimis use. After posting that story, we heard from Zack Teibloom who, it turns out, is the person who shot and posted the Vine videos in the first place. They were taken at Prince’s SXSW concert. He noted that he treated the takedowns as “cease and desist” letters and chose to take them all down. Before he did so, we were able to snag one of the videos, which we’ve now posted to YouTube solely for the discussion over whether or not the original takedown was an abuse of the DMCA.
These are unauthorized recordings and are unauthorized synchronizations As such, I have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law. I hereby confirm that I believe the tracks identified in this email infringe my copyright.
However, it is incorrect that the use was not permitted by law. Under both fair use and de minimis use, such a use is clearly permitted by law. Furthermore, as a court found in the Lenz v. Universal Music Group case, the filer of a DMCA takedown needs to take fair use into account before issuing the takedown. Separately, as a bootleg video, this might not even be subject to the DMCA at all.
As per Vine’s own limitation, the clip is a mere six seconds long, showing five disjointed clips of a song. If we were to do a four factors test for Teibloom’s original use, it seems clear that it is fair use.
The purpose and character of the use:
The showing of brief six second, disjointed clips was clearly just to highlight that Teibloom had attended the SXSW show, and was linked from his review just to highlight the sense of what the show was like. It’s clearly not a full use of the song or anything attempting to be a replacement for the song or the concert itself. It was a brief “view” of one attendee’s perspective, which is clearly transformative from the original work. As such, it clearly “added value” to the original, since it was showing something different and unique from the original, while providing some perspective on the experience of attending such a show.
The nature of the copyrighted work
This was a recording of a brief bit of a live event, not of the sound recording or anything like that. Again, the point was to capture the live atmosphere and experience. This prong of the fair use test is supposed to be to protect the dissemination of information, and that seems clear from the use.
Also, even the brief bit of music that you hear is a pretty generic soul / funk music riff, rather than something highly unique and identifiable with Prince himself. I’m not even sure that the song being played is a Prince song. It sounds so generic and short it’s difficult to identify. As a test, I tried to use Shazam on it, and despite claiming to be able to identify a song with as little as one second of music, it said it could not find a match. If you’d asked me I would have thought it was a just a generic James Brown-style riff rather than anything specific to Prince. Given that, while the performance is potentially covered by a copyright, it’s not clear that the song is covered by Prince’s copyright.
Hell, just the fact that it’s unclear what the song is highlights why this is almost certainly fair use or de mininmis use. One of the characteristics of de mininimis use is if you can distinguish the work. When even the expert automated ears at Shazam can’t do that…
The Amount and Substantiality of the Portion Taken
Six disjointed seconds. ‘Nuff said.
The Effect of the Use Upon the Potential Market
There is clearly no negative use whatsoever. It is not as if someone will not buy or license a Prince song because this clip was “good enough” as a substitute. There is no rational way to support such a claim.
That said, it is possible that Prince’s takedown actions might cause people to no longer want to support his works, but that’s his own actions, not this particular video.
That’s for Teibloom. As for us reposting the video and discussing it here, our use is even more transformative, as it is now about the discussion on whether or not the video itself is fair use. Without showing the video it is difficult to have a reasonable or competent discussion on whether or not it was fair use.
Either way, we believe that Prince and NPG Records are abusing the DMCA, potentially in violation of 512(f), and using the DMCA to take down perfectly legitimate videos that are allowed under US copyright law.